The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com

Where a sentencing court addresses the factors set out in 18 U.S.C.§ 3553(a) and imposes a sentence within the statutory maximum, this court’sprecedent teaches deference to that judgment on any variance above the Guidelinerange, no matter how large. See, e.g., United States v. Shaw, 560 F.3d 1230, 1241(11th Cir. 2009) (upholding a 120-month sentence representing a 224 percentupward variance from the maximum Guideline sentence); United States v.Amedeo, 487 F.3d 823, 834 (11th Cir. 2007) (upholding a 120-month sentencerepresenting a 161 percent upward variance); United States v. Turner, 474 F.3d1265, 1281 (11th Cir. 2007) (upholding a 240-month sentence representing a 281percent upward variance). Indeed, in all the cases decided by this court sinceUnited States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), I have found nonein which we vacated an upward variance from the Sentencing Guidelines onreasonableness grounds. For this reason, even though Mr. Early’s sentence of210-months imprisonment represents a 116 percent variance above the 97-monthsentence set by the top of his Guideline range and a remarkable 169 percentincrease from the 78-month sentence requested by the government itself, I cannotsay the panel’s decision here is contrary to our precedent.

At the same time, I write separately to note that this Court has declined toexercise similar deference toward a sentencing court’s decision to grant adownward variance. See, e.g., United States v. Jayyousi, 657 F.3d 1085, 1118–19(11th Cir. 2011) (holding that a 42 percent downward variance was substantivelyunreasonable); United States v. Irey, 612 F.3d 1160, 1196 (11th Cir. 2010) (enbanc) (same); United States v. Pugh, 515 F.3d 1179, 1203 (11th Cir. 2008)(holding that a 100 percent downward variance was substantively unreasonable).This, even where the extent of the variance from the Guideline range was farsmaller and where the reasons given by the sentencing court were moresubstantial.

My reading of these cases tells me that in considering sentences above theGuideline range, we look only to whether the sentencing court seemed to considerthe § 3553(a) factors and we ignore whether the court might have disregarded oneof the factors or weighed the factors in an unreasonable way. In contrast, fordownward variances, we show no such deference and instead scrutinize how asentencing court applied each and every § 3553(a) factor. We even go so far as todecide for ourselves whether the factors were weighed correctly. See Irey, 612F.3d at 1196–1225; Pugh, 515 F.3d at 1194–1203.

And Judge Martin finishes like this:

In sum, even though our case law purportedly requires “a significant justification”to support a “major departure” from the Guidelines, see Pugh, 515 F.3d at 1201, the panel’s review of Mr. Early’s 116 percent upward variance evinces littleindication that such a requirement even applies here.Absent correction, I fear this Court’s different approach for reviewing up and down sentence variances may erode public trust in our work.

One of the cases that Martin cites is Jayyousi, which is the co-defendant's name in Jose Padilla's case. There, the 11th Circuit found that the district court's below guideline sentence was unreasonable and cert was just denied. But, the case is far from over. Check out this article about the DoD report explaining how Padilla was tricked into believing that the feds injected him with truth serum:

In 2006, a lawyer for Jose Padilla, the accused dirty-bomb plotter,
made an explosive claim in a federal court filing: the "enemy combatant"
was "given drugs against his will, believed to be some form of lysergic
acid diethylamide (LSD) or phencyclidine (PCP), to act as a sort of
truth serum during his interrogations."
But what Seymour failed to disclose, reported here for the first
time, was that Padilla was given the flu shot during an interrogation
session and told by his interrogators the injection was "truth serum,"
according to a declassified Department of Defense (DoD) inspector
general's report that probed the use of "mind-altering drugs" during the
interrogation of war on terror detainees.
Sanford Seymour, the technical director of the US Naval brig in South
Carolina where Padilla was held, however, vehemently denied the charge
during a 2006 hearing to determine whether Padilla, a US citizen, was
competent to stand trial. Seymour asserted Padilla was injected with an
influenza vaccine.
The inspector general's investigation determined that although
Padilla was not administered mind-altering drugs (such as LSD), "the
incorporation of a routine flu shot into an interrogation session ...
was a deliberate ruse by the interrogation team, intended to convince
[redacted] he had been administered a mind-altering drug."

6 comments:

Anonymous
said...

The I-10 gang (i.e. - 11th Circuit) is a very conservative court. Erosion in confidence assmues some confidence to begin with, and I just don't see it. For example, David's favorite humorist, Judge Carnes, just publised an opinion on an issue of first impression in the 11th Circuit based on a brief filed by a pro se defendant and without oral argument. How is that for a confidence builder?

agree with judge martin. the court only cares about sentences that depart downward and places itself as sentencing judge instead; disagree that tricking a detainee to tell the truth is at all a problem.

The Southern District of Florida blog was started by David Oscar Markus, who is a criminal trial and appellate lawyer in Miami, Florida. He frequently practices in federal courts around the country, including his hometown, the Southern District of Florida and the 11th Circuit Court of Appeals. He is a former law clerk to then-Chief Judge of the District, Edward B. Davis.